ObamaCare’s Supreme Court fallout: The good, the bad, and the Fig Leaf

David Rivkin Analyzes the Supremes’ Decision at the Cato Institute’s annual Constitution Day symposium on Supreme Court rulings. The Chief Justice’s opinion expanded Congress’ taxing power in order to uphold the ObamaCare legislation.

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DRIV Screen shot 2012-09-19 at 9.02.14 AM

PRLog (Press Release) – Sep 19, 2012 – Washington D.C. – The ObamaCare issue isn’t going away. While Chief Justice John Roberts’ opinion put limits on the Congress’ power to regulate citizens’ activity, it gutted limitations on Congress’ taxing power. So said constitutional attorney David Rivkin at the Cato Institute’s Annual Constitution Day symposium on the Supreme Court rulings. The symposium was held yesterday at the institute’s conference facility in Washington, D.C.

David Rivkin, who led the 26-state case against the U.S. government in Florida’s 11th District Court (whose judge, Roger Vinson, ruled in the plaintiffs’ favor), said that the Supreme Court decision in June was both “excellent and bad.” For years, Congress has enacted legislation that increasingly broadened its regulatory powers, assuming that any regulation is justified by the Constitution’s Commerce Clause. The Supreme Court decision put limits on Congress’ power to do so. For those interpreting the Constitution as limiting and enumerating the powers of government, this aspect of the ruling was good news.

Unfortunately, according to Rivkin, the Supreme Court’s decision to uphold ObamaCare required that they effectively rewrite the law and broaden Congress’ tax authority. They converted the individual mandate into a tax for not purchasing insurance. Rivkin asserted that this expansion of the taxing power enables Congress to tax inactivity—crossing a constitutional barrier into police powers that are generally reserved for the states.

Rivkin observed that the Supreme Court adheres to the principles of federalism, i.e., the dual sovereignty of the federal government and the states, only when ruling on laws that are not important—a position known as “fig leaf federalism.”